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S. 2489 (114th): Incorporation Transparency and Law Enforcement Assistance Act

Last month’s bombshell journalism investigation nicknamed the Panama Papers, by some measures the largest leak in history at 11.5 million files, renewed focus and outcry over offshore accounts. Through “shell corporations,” companies that in reality are almost entirely based in one country or U.S. state with higher tax rates are officially registered in another country or state with lower rates. Documents from the Panama-based Mossack Fonseca, the world’s fourth biggest offshore law firm, revealed that in the most extreme cases, zero in taxes would be paid on billions in revenue.

The latest congressional bill to tackle this issue would require almost all American companies to disclose the people who actually own or control them, and to keep that information updated. It’s called H.R. 4450 and S. 2489, the Incorporation Transparency and Law Enforcement Assistance Act.

What it does

Introduced by Rep. Carolyn Maloney (D-NY12) and Sen. Sheldon Whitehouse (D-RI), the bill would require the Treasury Department to issue federal rules for the largely state-based process for registering corporations, requiring the disclosure of:

  1. “Identification of beneficial owners by name, current address, and non-expired passport or state-issued driver’s license;
  2. Identification of any affiliated legal entity that will exercise control over the incorporated entity;
  3. Consistent updating of lists of beneficial owners no later than 60 days after any change in ownership.”
What supporters say

Supporters argue that the bill would help stem the crime and drug trades, make tax policy fairer, and promote transparency. “This is unacceptable, and it has to stop. Our national security and our law enforcement priorities depend on it. And it is the right thing to do: our legal system should not protect the rights of bad people to do bad things in secret,” Maloney said in a press release. “Our message is simple: tell us who the real owner is, or take your business elsewhere.”

“Right now, the United States is a preferred destination for terrorists, drug traffickers, tax cheats, and other criminals who want to hide the gains from their illegal activity in anonymous business entities. This simple change will help law enforcement have the tools to root out this dirty money,” Whitehouse said in the same press release.

What opponents say

The American Bar Association, the main professional association of lawyers and law students, came out against the bill last month. They worry it hampers reforms on both the voluntary and state-based levels, which are better because they are “tailored to the individual situation rather than the burdensome and costly rules-based approach of the proposed bills.”

Another concern is that the disclosure requirements would interfere with attorney-client privilege.

It’s also opposed by officials in certain states that win under the current arrangement. A recent study found that the United States was the second-easiest country in which to set up a shell corporation, behind only Kenya. Among the easiest states are Delaware, Montana, South Dakota, Wyoming, and Nevada. No Members of Congress from those states have signed on to either the House or Senate version of the bill.

Odds of passage

At least in theory, this bill has elements which could appeal to both parties. For the Democrats, it would better better ensure that corporations don’t “game the system.” For some Republicans, it would crack down on the “crony capitalism” decried by a substantial portion of the party, the same faction that opposed renewal of the Export-Import Bank last year, such as Donald Trump, Ted Cruz, and Rand Paul.

Mot many others have signed onto this bill so far. The House bill has 10 cosponsors: nine Democrats and Republican Rep. Peter King (R-NY2). The Senate bill has one cosponsor Sen. Dianne Feinstein (D-CA). The bills have been referred to the House Financial Services and Senate Judiciary Committees, respectively.

Last updated May 11, 2016. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Feb 3, 2016.

Incorporation Transparency and Law Enforcement Assistance Act

This bill amends the Omnibus Crime Control and Safe Streets Act of 1968, in order to protect the United States from misuse affecting interstate or foreign commerce of corporations and limited liability companies with hidden owners, to require states receiving funding under the Edward Byrne Memorial Justice Assistance Grant Program to: (1) use an incorporation system that requires applicants for forming corporations or limited liability companies (corporations), and corporations that have formed, to provide and update lists of their beneficial owners; (2) maintain beneficial ownership information for five years after the corporation terminates; and (3) provide such information pursuant to certain criminal, civil, or administrative requests.

It authorizes a state that maintains a formal licensing system for formation agents to permit applicants or corporations to provide such information to an agent residing in that state instead of to that state directly. It requires such an agent to certify verification of specified identifying information for applicants or corporation owners or officers who do not have a non-expired U.S.-issued passport, drivers license, or identification card.

It specifies exempt entities. It also prescribes penalties for providing false or fraudulent beneficial ownership information or for willfully failing to provide complete or updated information.

The bill requires the Administrator for Federal Procurement Policy to revise the Federal Acquisition Regulation to require any contractor subject to the requirement to disclose beneficial ownership information under this bill to provide the information to the federal government as part of any bid for a contract with a value exceeding the simplified acquisition threshold.

It directs the Department of the Treasury to promulgate a rule requiring persons engaged in the business of forming corporations to establish anti-money laundering programs.

The Government Accountability Office must study and report on: (1) the extent to which states enable persons to form partnerships, trusts, charitable organizations, or other legal entities under state law and require such persons to provide beneficial owner information; and (2) the effectiveness of incorporation practices implemented under this bill in aiding law enforcement.